Pawan Kumhar vs M/S Bharat Coking Coal Ltd. Through Its ... on 11 December, 2024

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Jharkhand High Court

Pawan Kumhar vs M/S Bharat Coking Coal Ltd. Through Its ... on 11 December, 2024

2. This intra court appeal is directed against the judgment dated 12.02.2024 passed by the writ court in W.P.(S) No. 207 of 2021 which was dismissed and the claim 1 of the petitioner to correct the date of birth in his entire service records based on matriculation certificate as 09.10.1972 instead of 25.08.1967 has been rejected.

3. The brief facts of the case are that the petitioner was appointed on compassionate grounds to the post of Minor Loader and joined his service on 30.10.1990 at Madhuban Colliery under respondent-BCCL.

4. The claim of the writ petitioner before the writ court was that before joining his service, he appeared in the matriculation examination and has duly submitted his admit card to the management and thereafter, the Area Personal Manager vide letter dated 15.02.2000 has issued a letter to the Bihar School Examination Board for verification of the certificate.

The further case of the writ-petitioner was that during course of his service he was promoted to the post of Mining Sardar, wherein the date of birth as mentioned in the matriculation certificate has been correctly mentioned in the relevant document as '09.10.1972'.

The petitioner for the first time represented before the respondents on 07.02.2006 when he came to know about the date of birth mentioned in the service excerpts as '25.08.1967' but the same was not considered. 2

However, as per the petitioner his date of birth entered in service excerpts as 23 year as on 25.08.1990 is not correct; and thus the learned Writ court has committed an error in not allowing the prayer of the petitioner and giving direction to the concerned respondent to correct the date of birth from 09.10.1972 to 25.08.1967.

5. Mr. Ajit Kumar, learned Sr. Counsel assailed the writ court order and submitted that the respondents were not justified in accepting the date of birth as 23 years as on 25.08.1990 when the matriculation certificate was already available. He further submits that even the respondents have considered the date of birth as 09.10.1972 while granting promotion to the post of Mining Sardar therefore, it was for the respondents to enter the same date of birth as per matriculation certificate in the entire service excerpts including "Statutory Form-B Register". Since the petitioner passed the matriculation examination before entering into the service and as such it cannot be said that it is a belated claim. The wrong entry in the service excerpts was solely due to the fault of the respondents-employer and not due to the fault of writ petitioner.

In support of his contention he heavily relied upon the case of Bharat Coking Coal Ltd. v. Chhota Birsa 3 Uranw reported in 2014 12 SCC 570 and submits that in the instant case the Hon'ble Apex Court has considered the claim of that employee by observing as under:-

"15. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, Legal Inspector of the appellant Company on 6-9-2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction 76 Clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words "were issued" was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school."

He further relied on several other judgments in support of his contentions and concluded his argument by submitting that the representation filed by the employee and the dispute raised, cannot be said to be made at the fag end of service as the petitioner is still having years of service to undergo.

6. Mr. A. K. Mehta, learned counsel appearing for the respondent-BCCL submits that for the first time, petitioner has raised the dispute in the year 2005, whereas he was appointed in service in the year 1990 itself. Since the 4 petitioner did not submit the matriculation certificate at the time of joining and therefore, he was sent for medical examination. Thereafter, based on the medical assessment, the date of birth of the petitioner was entered in statutory Form-B register as 23 years as on 25.08.1990 and the petitioner duly acknowledged the same by putting his signature. He reiterated that the writ petitioner had never submitted his matriculation certificate at the time of initial appointment.

He further submits that the learned writ court has rightly appreciated the entire issues and rejected the claim of the petitioner.

7. Having heard learned counsel for the parties and after going through the impugned judgment, it appears that the claim of the writ petitioner-appellant that he submitted the matriculation certificate does not appear to be genuine in view of the fact that had he submitted the matriculation certificate, there would have been no occasion for the respondents not to consider the date of birth in view of matriculation certificate and sent the petitioner for medical examination.

From record it further transpires that based on the medical assessment, the date of birth of the petitioner was entered in Form-B register as 23 years as on 25.08.1990 and 5 the petitioner duly acknowledged the same by putting his signature.

At this stage, it is relevant to mention here that the petitioner was not an illiterate person as he duly signed in the Form-B register which was prepared at the very initial stage of the employment. Thus, it cannot be presumed that he was not aware of the fact that on the basis of medical assessment, his date of birth has been entered in Form-B register as 23 years as on 25.08.1990. As a matter of fact, for the first time he raised this dispute in the year 2006.

Hon'ble Apex Court in the case of GM, Bharat Coking Coal Ltd. v. Shib Kumar Dushad reported in (2000) 8 SCC 696 has held as under:

"15....where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of the authority concerned and has been determined by following the procedure prescribed under the service rules or general instructions issued by the employer and it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the face of the record, the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution should not interfere with the decision of the employer."

Even recently, the Hon'ble Apex Court in case of General Manager, Barsua Iron Ore Mines v. Vice President United Mines Mazdoor Union and Others reported in 2024 SCC OnLine SC 491 reiterated the principle laid down in Karnataka Rural Infrastructure Development Ltd. v. T.P. Nataraja reported in (2021) 12 SCC 27 wherein the Hon'ble Apex Court laid the following guidelines. The 6 relevant para is quoted herein below:

"11. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarised as under:

(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and laches also more particularly when it is made at the fag-end of service and/or when the employee is about to retire on attaining the age of superannuation."

8. The judgment relied upon by the respondents would not be applicable in the facts and circumstances of the case, in view of the fact that the age of the appellant-employee was assessed by the Medical Board and the same was entered in "Statutory Form-B Register" as 23 years as on 25.08.1990 and the petitioner has duly acknowledged the same by putting his signature. As stated hereinabove, the petitioner was a literate person, inasmuch as, he also completed the course of mining sardar.

9. Even otherwise, the petitioner approached the respondents in the year 2006 and he filed the writ application in the year 2010 being W.P.(S) No. 4046 of 2010 which was dismissed for non-prosecution and after a gap of 9 years the petitioner filed a restoration application which was also withdrawn and finally, he filed a fresh writ application before this Court being W.P.(S) No. 207 of 2021, the order of which has been impugned in this appeal. The reason for mentioning all the above facts is only to indicate that the instant application apart from being hit by law of delay and latches, 7 also demonstrates the casual approach of the petitioner. The issue of unexplained delay in filing of writ petition has been settled by Hon'ble Apex Court in Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185.

Recently in the case of Mrinmoy Maity v. Chhanda Koley and Others reported in 2024 SCC OnLine SC 551, the Hon'ble Apex Court has categorically held that delay defeats equity, delay or laches is one of the factors which should be borne in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. The relevant paragraphs are quoted herein below:

"9....This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

11...If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court... "

10. Having regard to the aforesaid facts and circumstances and the discussions made hereinabove; we are of the 8 considered view that no error has been committed by the learned writ court and accordingly we refrain from interfering with the same. Consequently, this intra court appeal stands dismissed. Pending I.A., if any, is also closed.

(M.S. Ramachandra Rao, C.J.) (Deepak Roshan, J.) Jharkhand High Court at Ranchi Dated:-11/12/2024 Amardeep/ AFR/NAFR 9

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Jharkhand High Court